CONSULTING AGREEMENT
RECITALS
CONSULTING AGREEMENT entered into this 16th of October 2001, by and between
E-Rex, Inc., a Nevada Company (the "Company"), and Kyle Kennedy ("Consultant").
WHEREAS, the Company desires to continue the consulting services of Consultant
in the areas of Business Development, Mergers and Acquisitions and Business
Strategy for the Company (the "Services") in connection the Company's business,
namely,
Computer Software, Hardware, and Internet Areas (the "Business");
WHEREAS, in consideration for the Services, the Company shall issue its common
stock that shall be registered S-8 stock upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. PROVISION OF SERVICES
Duties of Consultant, The Consultant will provide such services and advice to
the Company so as to advise the Company in business development, mergers and
acquisitions, business strategy and corporate image. Without limiting the
generality of the foregoing, Consultant will also assist the Company in
developing, studying and evaluating acquisition proposals, prepare reports and
studies thereon when advisable, and assist in matters of executive compensation
and discussions pertaining thereof. Nothing contained herein constitutes a
commitment on the part of the Consultant to find an acquisition target for the
Company or, if such target is found, that any transaction will be completed.
This Agreement is not a contract for listing services, and nothing in this
Agreement will require the Consultant to negotiate on behalf of the Company with
corporations that are involved with listings or making a market in corporate
securities in the OTC markets. Consultant would undertake such services under
the direction of Carl Dilley, Company President and CEO.
1.1 Duties Expressly Excluded. This Agreement expressly excludes the
Consultant from providing public relation services to the Company inclusive of
but not limited to (i) direct or indirect promotion of the Company's securities;
(ii) assistance in making of a market in the Company's securities. The
Consultant shall not have the power of authority to bind the Company to any
transaction without the Company's prior written consent.
2. ISSUANCE OF STOCK
The Company shall compensate the Consultant with free trading shares of the
Company's Common Stock, and warrants for shares of Company's Common Stock. The
Company shall issue the Consultant 400,000 free trading shares of the Company's
Common Stock upon execution of this agreement. In addition, the Company will
issue warrants to purchase $150,000 in freely trading shares of the Company's
Common Stock according to the schedule below.
The warrants will expire 90 days from the date of issue according to the
schedule below, and Consultant may exercise any available warrants in any
increments of 100,000 or more at any time prior to expiration according to the
schedule below. The aforementioned warrants shall be executable at a "Market"
price determined by taking the average closing price per share for ten days
previous to execution of the warrants and multiplying by 65%. The
aforementioned warrants shall be considered earned upon execution of the
agreement. The Company shall immediately file an S-8 registration including
these shares. The Company agrees to file additional S-8 registrations if
necessary to fulfill the terms of the contract.
Schedule For Compensation
Date Description Amount/Number
1. Execution Issue Shares 400,000
2. Execution Warrants at 65% of Market $30,000
3. 11/01/01 Warrants at 65% of Market $40,000
4. 12/01/01 Warrants at 65% of Market $40,000
5. 1/01/02 Warrants at 65% of Market $40,000
3. PROPERTY
All work performed by Consultant pursuant to this Agreement in connection with
the Services or otherwise, including, without limitation, business and strategic
plans and proposals, and however rendered, electronic or otherwise, and whether
or not patentable or copyrightable (the "Products"), shall be deemed
works-made-for-hire under United States copyright law and shall be the property
of the Company. Consultant further agrees to and does hereby assign, transfer,
and convey to the Company all of Consultant's right, title and interest in and
to the Products, and in connection therewith, to execute and deliver such
documents and take other steps, in order to enable the Company, in its sole
discretion, to obtain grants of patent and registration of copyright and
trademark, both domestic and foreign, in connection with the Products.
4. CONFIDENTIAL INFORMATION
The Company has developed and is the owner of highly valuable and unique
confidential and proprietary technical information related to the Business, as
well as business and financial information related thereto (the "Confidential
Information"). Notwithstanding the foregoing, "Confidential Information" shall
not include and the provisions of this Agreement will not apply to any
information disclosed by the Company and/or Consultant (1) if such information
is demonstrated to be generally available to the public at the time of its
disclosure to Consultant; (2) after the time, if any, that such information
becomes generally available to the public without any breach by Consultant; (3)
was already in Consultant's possession at the time of disclosure to Consultant
(whether such time of disclosure is before or after the date hereof); (4) is
developed by Consultant independently of the Services; or (5) was lawfully
received by Consultant from a third party without restrictions on disclosure or
use.
Using no less effort than the Consultant would use to maintain the
confidentiality of his own confidential and proprietary information, the
Consultant shall maintain in strict confidence and shall not disclose at any
time, without the prior written consent of the Company, any of the Confidential
Information to any other person or entity, unless such information has entered
the public domain through lawful means, without violation of this Agreement, or
pursuant to requirements of law or court order.
5. SEVERABILITY
In the event that any one or more provisions herein shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof.
6. INDEPENDENT CONTRACTOR
Consultant acknowledges and agrees that he is rendering the Services as an
independent contractor and not an employee of the Company and, accordingly, the
Company shall have no obligations to Consultant in connection with payroll
taxes, employee benefits and the like.
7. NO ASSIGNMENT
Consultant's obligations hereto with respect to provision of Services shall not
be assignable to any other person without the express written consent of the
Company.
8 MISCELLANEOUS
This Agreement (I) constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and shall supersede all prior
understandings and agreements as to such subject matter; (ii) may be amended or
modified only by a writing executed by the party against whom enforcement is
sought; (iii) shall inure to the benefit of and be binding upon the respective
heirs, administrators, personal representatives, successors and assigns of the
parties hereto; and (iv) shall be governed by and construed in accordance with
the laws of California.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement
as of the date and year first above written.
CONSULTANT:
/s/ Kyle Kennedy
___________________________
Name & Title: Kyle Kennedy
COMPANY:
/s/ Carl Dilley
___________________________
Carl Dilley
President
E-Rex, Inc.
Certificate 001
EXHIBIT A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF
ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE
144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION
OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE
REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
WARRANT
E-Rex, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, Kyle Kennedy (the "Holder") is
entitled, subject to the terms and conditions set forth herein, to purchase from
E-Rex, Inc. (the "Company") that number of shares of common stock of the Company
equal to the Principal Value divided by the Closing Price (the "Warrant
Securities"). For purposes hereof, the Principal Value shall be equal to Thirty
Thousand Dollars ($30,000.00), minus any amount of the Principal Value
previously exercised. For purposes hereof, the Closing Price shall be sixty
five percent (65%) of the average closing bid price on the ten trading days
immediately before the date of exercise.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at
any time, or from time to time, between the date of October 15, 2001 and 5:00
p.m. Pacific Time on January 15, 2002, by presentation and surrender hereof to
the Company of a notice of election to purchase duly executed and accompanied by
payment by check or wire transfer of the applicable amount of the Principal
Value then exercised.
2. MANNER OF EXERCISE. In case of the purchase of less than all the
Warrant Securities, the Company shall cancel this Warrant upon the surrender
hereof and shall execute and deliver a new warrant of like tenor for the balance
of the Warrant Securities. Upon the exercise of this Warrant, the issuance of
certificates for securities, properties or rights underlying this Warrant shall
be made forthwith (and in any event within three (3) business days thereafter)
without charge to the Holder including, without limitation, any tax that may be
payable in respect of the issuance thereof: provided, however, that the Company
shall not be required to pay any tax in respect of income or capital gain of the
Holder.
If and to the extent this Warrant is exercised, in whole or in part, the
Holder shall be entitled to receive a certificate or certificates representing
the Warrant Securities so purchased, upon presentation and surrender to the
Company of the form of election to purchase attached hereto duly executed, and
accompanied by payment of the purchase price.
3. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall
be construed as requiring the Holder to exercise this Warrant prior to or in
connection with the effectiveness of a registration statement.
4. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised,
this Warrant shall not entitle the Holder hereof to any voting rights or other
rights as a stockholder of the Company, or to any other rights whatsoever except
the rights herein expressed, and, no dividends shall be payable or accrue in
respect of this Warrant.
5. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by
the Holder to the Company for new warrants of like tenor representing in the
aggregate the right to purchase the number of Warrant Securities purchasable
hereunder, each of such new warrants to represent the right to purchase such
number of Warrant Securities as shall be designated by the Holder at the time of
such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and, in case of
loss, theft or destruction, of indemnity or security reasonably satisfactory to
it and reimbursement to the company of all reasonable expenses incidental
thereto, and upon surrender and cancellation hereof, if mutilated, the Company
will make and deliver a new warrant of like tenor and amount, in lieu hereof.
6. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of securities upon the
exercise of this Warrant, nor shall it be required to issue scrip or pay cash in
lieu of fractional interests. All fractional interests shall be eliminated by
rounding any fraction up to the nearest whole number of securities, properties
or rights receivable upon exercise of this Warrant.
7. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock or
other securities, solely for the purpose of issuance upon the exercise of this
Warrant, such number of shares of Common Stock or other securities, properties
or rights as shall be issuable upon the exercise hereof. The Company covenants
and agrees that, upon exercise of this Warrant and payment of the Principal
Value, all shares of Common Stock and other securities issuable upon such
exercise shall be duly and validly issued, fully paid, non-assessable and not
subject to the preemptive rights of any stockholder.
8. NOTICES TO HOLDER. If at any time prior to the expiration of this
Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its
securities for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of a class of its
securities any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or substantially all
of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of
such event to the Holder at least fifteen (15) days prior to the date fixed as a
record date or the date of closing the transfer books for the determination of
the stockholder entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be.
9. TRANSFERABILITY. This Warrant shall not be transferable by the
Holder.
10. INFORMATIONAL REQUIREMENTS. The Company will transmit to the
Holder such information, documents and reports as are generally distributed to
stockholders of the Company concurrently with the distribution thereof to such
stockholders.
11. NOTICE. Notices to be given to the Company or the Holder shall be
deemed to have been sufficiently given if delivered personally or sent by
overnight courier or messenger or sent by registered or certified mail (air mail
if overseas), return receipt requested, or by telex, facsimile transmission,
telegram or similar means of communication. Notices shall be deemed to have
been received on the date of personal delivery, telex, facsimile transmission,
telegram or similar means of communication, or if sent by certified or
registered mail, return receipt requested, shall be deemed to be delivered on
the third business day after the date of mailing. The address of the Company
and of the Holder shall be as set forth in the Subscription Agreement.
12. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the
jurisdiction of any court of the State of Florida, and of any federal court
located in Florida, in any action or proceeding arising out of or in connection
with this Warrant. The Company waives personal service of any summons,
complaint or other process in connection with any such action or proceeding and
agrees that service thereof may be made, by certified mail directed to the
Company at the location provided in Section 11 hereof, or, in the alternative,
in any other form or manner permitted by law. Dade County, Florida shall be
proper venue.
13. SUCCESSORS. All the covenants and provisions of this Warrant shall
be binding upon and inure to the benefit of the Company, the Holder and their
respective legal representatives, successors and assigns.
14. ATTORNEYS FEES. In the event the Investors or any holder hereof
shall refer this Warrant to an attorney to enforce the terms hereof, the Company
agrees to pay all the costs and expenses incurred in attempting or effecting
collection hereunder, including reasonable attorney's fees, whether or not suit
is instituted.
15. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND
INTERPRETED UNDER THE LAWS OF THE STATE OF FLORIDA, WITHOUT GIVING EFFECT TO THE
RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
the signature of its President and its seal affixed and attested by its
Secretary and to be delivered in Miami, Florida.
Dated: October 15, 2001 E-Rex, Inc.
/s/ Carl E. Dilley
__________________________________
By: Carl E. Dilley
Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably
elects to exercise the purchase right represented by this Warrant Certificate
for, and to purchase securities of E-Rex, Inc. and herewith makes payment of
$______ therefor, and requests that the certificates for such securities be
issued in the name of, and delivered to _______________________, whose address
is _________________________________________.
Dated: ____________________, 20___ ____________________________________
By: ____________________________
(Signature must conform in all
respects to name of holder as specified
on the face of the Warrant Certificate)
________________________________________
(Insert Social Security or Other
Identifying Number of Holder)
Certificate 002
EXHIBIT A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF
ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE
144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION
OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE
REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
WARRANT
E-Rex, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, Kyle Kennedy (the "Holder") is
entitled, subject to the terms and conditions set forth herein, to purchase from
E-Rex, Inc. (the "Company") that number of shares of common stock of the Company
equal to the Principal Value divided by the Closing Price (the "Warrant
Securities"). For purposes hereof, the Principal Value shall be equal to Forty
Thousand Dollars ($40,000.00), minus any amount of the Principal Value
previously exercised. For purposes hereof, the Closing Price shall be sixty
five percent (65%) of the average closing bid price on the ten trading days
immediately before the date of exercise.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at
any time, or from time to time, between the date of November 1, 2001 and 5:00
p.m. Pacific Time on February 1, 2002, by presentation and surrender hereof to
the Company of a notice of election to purchase duly executed and accompanied by
payment by check or wire transfer of the applicable amount of the Principal
Value then exercised.
2. MANNER OF EXERCISE. In case of the purchase of less than all the
Warrant Securities, the Company shall cancel this Warrant upon the surrender
hereof and shall execute and deliver a new warrant of like tenor for the balance
of the Warrant Securities. Upon the exercise of this Warrant, the issuance of
certificates for securities, properties or rights underlying this Warrant shall
be made forthwith (and in any event within three (3) business days thereafter)
without charge to the Holder including, without limitation, any tax that may be
payable in respect of the issuance thereof: provided, however, that the Company
shall not be required to pay any tax in respect of income or capital gain of the
Holder.
If and to the extent this Warrant is exercised, in whole or in part, the
Holder shall be entitled to receive a certificate or certificates representing
the Warrant Securities so purchased, upon presentation and surrender to the
Company of the form of election to purchase attached hereto duly executed, and
accompanied by payment of the purchase price.
3. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall
be construed as requiring the Holder to exercise this Warrant prior to or in
connection with the effectiveness of a registration statement.
4. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised,
this Warrant shall not entitle the Holder hereof to any voting rights or other
rights as a stockholder of the Company, or to any other rights whatsoever except
the rights herein expressed, and, no dividends shall be payable or accrue in
respect of this Warrant.
5. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by
the Holder to the Company for new warrants of like tenor representing in the
aggregate the right to purchase the number of Warrant Securities purchasable
hereunder, each of such new warrants to represent the right to purchase such
number of Warrant Securities as shall be designated by the Holder at the time of
such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and, in case of
loss, theft or destruction, of indemnity or security reasonably satisfactory to
it and reimbursement to the company of all reasonable expenses incidental
thereto, and upon surrender and cancellation hereof, if mutilated, the Company
will make and deliver a new warrant of like tenor and amount, in lieu hereof.
6. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of securities upon the
exercise of this Warrant, nor shall it be required to issue scrip or pay cash in
lieu of fractional interests. All fractional interests shall be eliminated by
rounding any fraction up to the nearest whole number of securities, properties
or rights receivable upon exercise of this Warrant.
7. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock or
other securities, solely for the purpose of issuance upon the exercise of this
Warrant, such number of shares of Common Stock or other securities, properties
or rights as shall be issuable upon the exercise hereof. The Company covenants
and agrees that, upon exercise of this Warrant and payment of the Principal
Value, all shares of Common Stock and other securities issuable upon such
exercise shall be duly and validly issued, fully paid, non-assessable and not
subject to the preemptive rights of any stockholder.
8. NOTICES TO HOLDER. If at any time prior to the expiration of this
Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its
securities for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of a class of its
securities any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or substantially all
of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of
such event to the Holder at least fifteen (15) days prior to the date fixed as a
record date or the date of closing the transfer books for the determination of
the stockholder entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be.
9. TRANSFERABILITY. This Warrant shall not be transferable by the
Holder.
10. INFORMATIONAL REQUIREMENTS. The Company will transmit to the
Holder such information, documents and reports as are generally distributed to
stockholders of the Company concurrently with the distribution thereof to such
stockholders.
11. NOTICE. Notices to be given to the Company or the Holder shall be
deemed to have been sufficiently given if delivered personally or sent by
overnight courier or messenger or sent by registered or certified mail (air mail
if overseas), return receipt requested, or by telex, facsimile transmission,
telegram or similar means of communication. Notices shall be deemed to have
been received on the date of personal delivery, telex, facsimile transmission,
telegram or similar means of communication, or if sent by certified or
registered mail, return receipt requested, shall be deemed to be delivered on
the third business day after the date of mailing. The address of the Company
and of the Holder shall be as set forth in the Subscription Agreement.
12. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the
jurisdiction of any court of the State of Florida, and of any federal court
located in Florida, in any action or proceeding arising out of or in connection
with this Warrant. The Company waives personal service of any summons,
complaint or other process in connection with any such action or proceeding and
agrees that service thereof may be made, by certified mail directed to the
Company at the location provided in Section 11 hereof, or, in the alternative,
in any other form or manner permitted by law. Dade County, Florida shall be
proper venue.
13. SUCCESSORS. All the covenants and provisions of this Warrant shall
be binding upon and inure to the benefit of the Company, the Holder and their
respective legal representatives, successors and assigns.
14. ATTORNEYS FEES. In the event the Investors or any holder hereof
shall refer this Warrant to an attorney to enforce the terms hereof, the Company
agrees to pay all the costs and expenses incurred in attempting or effecting
collection hereunder, including reasonable attorney's fees, whether or not suit
is instituted.
15. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND
INTERPRETED UNDER THE LAWS OF THE STATE OF FLORIDA, WITHOUT GIVING EFFECT TO THE
RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
the signature of its President and its seal affixed and attested by its
Secretary and to be delivered in Miami, Florida.
Dated: October 15, 2001 E-Rex, Inc.
/s/ Carl E. Dilley
__________________________________
By: Carl E. Dilley
Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably
elects to exercise the purchase right represented by this Warrant Certificate
for, and to purchase securities of E-Rex, Inc. and herewith makes payment of
$______ therefor, and requests that the certificates for such securities be
issued in the name of, and delivered to _______________________, whose address
is _________________________________________.
Dated: ____________________, 20___ ____________________________________
By: ____________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
________________________________________
(Insert Social Security or Other
Identifying Number of Holder)
Certificate 003
EXHIBIT A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF
ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE
144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION
OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE
REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
WARRANT
E-Rex, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, Kyle Kennedy (the "Holder") is
entitled, subject to the terms and conditions set forth herein, to purchase from
E-Rex, Inc. (the "Company") that number of shares of common stock of the Company
equal to the Principal Value divided by the Closing Price (the "Warrant
Securities"). For purposes hereof, the Principal Value shall be equal to Forty
Thousand Dollars ($40,000.00), minus any amount of the Principal Value
previously exercised. For purposes hereof, the Closing Price shall be sixty
five percent (65%) of the average closing bid price on the ten trading days
immediately before the date of exercise.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at
any time, or from time to time, between the date of December 1, 2001 and 5:00
p.m. Pacific Time on March 1, 2002, by presentation and surrender hereof to the
Company of a notice of election to purchase duly executed and accompanied by
payment by check or wire transfer of the applicable amount of the Principal
Value then exercised.
2. MANNER OF EXERCISE. In case of the purchase of less than all the
Warrant Securities, the Company shall cancel this Warrant upon the surrender
hereof and shall execute and deliver a new warrant of like tenor for the balance
of the Warrant Securities. Upon the exercise of this Warrant, the issuance of
certificates for securities, properties or rights underlying this Warrant shall
be made forthwith (and in any event within three (3) business days thereafter)
without charge to the Holder including, without limitation, any tax that may be
payable in respect of the issuance thereof: provided, however, that the Company
shall not be required to pay any tax in respect of income or capital gain of the
Holder.
If and to the extent this Warrant is exercised, in whole or in part, the
Holder shall be entitled to receive a certificate or certificates representing
the Warrant Securities so purchased, upon presentation and surrender to the
Company of the form of election to purchase attached hereto duly executed, and
accompanied by payment of the purchase price.
3. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall
be construed as requiring the Holder to exercise this Warrant prior to or in
connection with the effectiveness of a registration statement.
4. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised,
this Warrant shall not entitle the Holder hereof to any voting rights or other
rights as a stockholder of the Company, or to any other rights whatsoever except
the rights herein expressed, and, no dividends shall be payable or accrue in
respect of this Warrant.
5. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by
the Holder to the Company for new warrants of like tenor representing in the
aggregate the right to purchase the number of Warrant Securities purchasable
hereunder, each of such new warrants to represent the right to purchase such
number of Warrant Securities as shall be designated by the Holder at the time of
such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and, in case of
loss, theft or destruction, of indemnity or security reasonably satisfactory to
it and reimbursement to the company of all reasonable expenses incidental
thereto, and upon surrender and cancellation hereof, if mutilated, the Company
will make and deliver a new warrant of like tenor and amount, in lieu hereof.
6. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of securities upon the
exercise of this Warrant, nor shall it be required to issue scrip or pay cash in
lieu of fractional interests. All fractional interests shall be eliminated by
rounding any fraction up to the nearest whole number of securities, properties
or rights receivable upon exercise of this Warrant.
7. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock or
other securities, solely for the purpose of issuance upon the exercise of this
Warrant, such number of shares of Common Stock or other securities, properties
or rights as shall be issuable upon the exercise hereof. The Company covenants
and agrees that, upon exercise of this Warrant and payment of the Principal
Value, all shares of Common Stock and other securities issuable upon such
exercise shall be duly and validly issued, fully paid, non-assessable and not
subject to the preemptive rights of any stockholder.
8. NOTICES TO HOLDER. If at any time prior to the expiration of this
Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its
securities for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of a class of its
securities any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or substantially all
of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of
such event to the Holder at least fifteen (15) days prior to the date fixed as a
record date or the date of closing the transfer books for the determination of
the stockholder entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be.
9. TRANSFERABILITY. This Warrant shall not be transferable by the
Holder.
10. INFORMATIONAL REQUIREMENTS. The Company will transmit to the
Holder such information, documents and reports as are generally distributed to
stockholders of the Company concurrently with the distribution thereof to such
stockholders.
11. NOTICE. Notices to be given to the Company or the Holder shall be
deemed to have been sufficiently given if delivered personally or sent by
overnight courier or messenger or sent by registered or certified mail (air mail
if overseas), return receipt requested, or by telex, facsimile transmission,
telegram or similar means of communication. Notices shall be deemed to have
been received on the date of personal delivery, telex, facsimile transmission,
telegram or similar means of communication, or if sent by certified or
registered mail, return receipt requested, shall be deemed to be delivered on
the third business day after the date of mailing. The address of the Company
and of the Holder shall be as set forth in the Subscription Agreement.
12. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the
jurisdiction of any court of the State of Florida, and of any federal court
located in Florida, in any action or proceeding arising out of or in connection
with this Warrant. The Company waives personal service of any summons,
complaint or other process in connection with any such action or proceeding and
agrees that service thereof may be made, by certified mail directed to the
Company at the location provided in Section 11 hereof, or, in the alternative,
in any other form or manner permitted by law. Dade County, Florida shall be
proper venue.
13. SUCCESSORS. All the covenants and provisions of this Warrant shall
be binding upon and inure to the benefit of the Company, the Holder and their
respective legal representatives, successors and assigns.
14. ATTORNEYS FEES. In the event the Investors or any holder hereof
shall refer this Warrant to an attorney to enforce the terms hereof, the Company
agrees to pay all the costs and expenses incurred in attempting or effecting
collection hereunder, including reasonable attorney's fees, whether or not suit
is instituted.
15. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND
INTERPRETED UNDER THE LAWS OF THE STATE OF FLORIDA, WITHOUT GIVING EFFECT TO THE
RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
the signature of its President and its seal affixed and attested by its
Secretary and to be delivered in Miami, Florida.
Dated: October 15, 2001 E-Rex, Inc.
/s/ Carl E. Dilley
__________________________________
By: Carl E. Dilley
Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably
elects to exercise the purchase right represented by this Warrant Certificate
for, and to purchase securities of E-Rex, Inc. and herewith makes payment of
$______ therefor, and requests that the certificates for such securities be
issued in the name of, and delivered to _______________________, whose address
is _________________________________________.
Dated: ____________________, 20___ ____________________________________
By: ____________________________
(Signature must conform in all
respects to name of holder as specified
on the face of the Warrant Certificate)
________________________________________
(Insert Social Security or Other
Identifying Number of Holder)
Certificate 004
EXHIBIT A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR THE SECURITIES LAWS OF
ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT APPLICABLE, RULE
144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION
OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE
REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
WARRANT
E-Rex, Inc.
(Incorporated under the laws of the State of Nevada)
THIS IS TO CERTIFY that, for value received, Kyle Kennedy (the "Holder") is
entitled, subject to the terms and conditions set forth herein, to purchase from
E-Rex, Inc. (the "Company") that number of shares of common stock of the Company
equal to the Principal Value divided by the Closing Price (the "Warrant
Securities"). For purposes hereof, the Principal Value shall be equal to Forty
Thousand Dollars ($40,000.00), minus any amount of the Principal Value
previously exercised. For purposes hereof, the Closing Price shall be sixty
five percent (65%) of the average closing bid price on the ten trading days
immediately before the date of exercise.
1. EXERCISABILITY. This Warrant may be exercised in whole or in part at
any time, or from time to time, between the date of January 1, 2002 and 5:00
p.m. Pacific Time on April 1, 2002, by presentation and surrender hereof to the
Company of a notice of election to purchase duly executed and accompanied by
payment by check or wire transfer of the applicable amount of the Principal
Value then exercised.
2. MANNER OF EXERCISE. In case of the purchase of less than all the
Warrant Securities, the Company shall cancel this Warrant upon the surrender
hereof and shall execute and deliver a new warrant of like tenor for the balance
of the Warrant Securities. Upon the exercise of this Warrant, the issuance of
certificates for securities, properties or rights underlying this Warrant shall
be made forthwith (and in any event within three (3) business days thereafter)
without charge to the Holder including, without limitation, any tax that may be
payable in respect of the issuance thereof: provided, however, that the Company
shall not be required to pay any tax in respect of income or capital gain of the
Holder.
If and to the extent this Warrant is exercised, in whole or in part, the
Holder shall be entitled to receive a certificate or certificates representing
the Warrant Securities so purchased, upon presentation and surrender to the
Company of the form of election to purchase attached hereto duly executed, and
accompanied by payment of the purchase price.
3. NO REQUIREMENT TO EXERCISE. Nothing contained in this Warrant shall
be construed as requiring the Holder to exercise this Warrant prior to or in
connection with the effectiveness of a registration statement.
4. NO STOCKHOLDER RIGHTS. Unless and until this Warrant is exercised,
this Warrant shall not entitle the Holder hereof to any voting rights or other
rights as a stockholder of the Company, or to any other rights whatsoever except
the rights herein expressed, and, no dividends shall be payable or accrue in
respect of this Warrant.
5. EXCHANGE. This Warrant is exchangeable upon the surrender hereof by
the Holder to the Company for new warrants of like tenor representing in the
aggregate the right to purchase the number of Warrant Securities purchasable
hereunder, each of such new warrants to represent the right to purchase such
number of Warrant Securities as shall be designated by the Holder at the time of
such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and, in case of
loss, theft or destruction, of indemnity or security reasonably satisfactory to
it and reimbursement to the company of all reasonable expenses incidental
thereto, and upon surrender and cancellation hereof, if mutilated, the Company
will make and deliver a new warrant of like tenor and amount, in lieu hereof.
6. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of securities upon the
exercise of this Warrant, nor shall it be required to issue scrip or pay cash in
lieu of fractional interests. All fractional interests shall be eliminated by
rounding any fraction up to the nearest whole number of securities, properties
or rights receivable upon exercise of this Warrant.
7. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock or
other securities, solely for the purpose of issuance upon the exercise of this
Warrant, such number of shares of Common Stock or other securities, properties
or rights as shall be issuable upon the exercise hereof. The Company covenants
and agrees that, upon exercise of this Warrant and payment of the Principal
Value, all shares of Common Stock and other securities issuable upon such
exercise shall be duly and validly issued, fully paid, non-assessable and not
subject to the preemptive rights of any stockholder.
8. NOTICES TO HOLDER. If at any time prior to the expiration of this
Warrant or its exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of any class of its
securities for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of a class of its
securities any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or substantially all
of its property, assets and business as an entirety shall be proposed.
then, in any one or more said events, the Company shall give written notice of
such event to the Holder at least fifteen (15) days prior to the date fixed as a
record date or the date of closing the transfer books for the determination of
the stockholder entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be.
9. TRANSFERABILITY. This Warrant shall not be transferable by the
Holder.
10. INFORMATIONAL REQUIREMENTS. The Company will transmit to the
Holder such information, documents and reports as are generally distributed to
stockholders of the Company concurrently with the distribution thereof to such
stockholders.
11. NOTICE. Notices to be given to the Company or the Holder shall be
deemed to have been sufficiently given if delivered personally or sent by
overnight courier or messenger or sent by registered or certified mail (air mail
if overseas), return receipt requested, or by telex, facsimile transmission,
telegram or similar means of communication. Notices shall be deemed to have
been received on the date of personal delivery, telex, facsimile transmission,
telegram or similar means of communication, or if sent by certified or
registered mail, return receipt requested, shall be deemed to be delivered on
the third business day after the date of mailing. The address of the Company
and of the Holder shall be as set forth in the Subscription Agreement.
12. CONSENT TO JURISDICTION AND SERVICE. The Company consents to the
jurisdiction of any court of the State of Florida, and of any federal court
located in Florida, in any action or proceeding arising out of or in connection
with this Warrant. The Company waives personal service of any summons,
complaint or other process in connection with any such action or proceeding and
agrees that service thereof may be made, by certified mail directed to the
Company at the location provided in Section 11 hereof, or, in the alternative,
in any other form or manner permitted by law. Dade County, Florida shall be
proper venue.
13. SUCCESSORS. All the covenants and provisions of this Warrant shall
be binding upon and inure to the benefit of the Company, the Holder and their
respective legal representatives, successors and assigns.
14. ATTORNEYS FEES. In the event the Investors or any holder hereof
shall refer this Warrant to an attorney to enforce the terms hereof, the Company
agrees to pay all the costs and expenses incurred in attempting or effecting
collection hereunder, including reasonable attorney's fees, whether or not suit
is instituted.
15. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED, CONSTRUED AND
INTERPRETED UNDER THE LAWS OF THE STATE OF FLORIDA, WITHOUT GIVING EFFECT TO THE
RULES GOVERNING CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
the signature of its President and its seal affixed and attested by its
Secretary and to be delivered in Miami, Florida.
Dated: October 15, 2001 E-Rex, Inc.
/s/ Carl E. Dilley
__________________________________
By: Carl E. Dilley
Its: President
[FORM OF ELECTION TO PURCHASE]
The undersigned, the holder of the attached Warrant, hereby irrevocably
elects to exercise the purchase right represented by this Warrant Certificate
for, and to purchase securities of E-Rex, Inc. and herewith makes payment of
$______ therefor, and requests that the certificates for such securities be
issued in the name of, and delivered to _______________________, whose address
is _________________________________________.
Dated: ____________________, 20___ ____________________________________
By: ____________________________
(Signature must conform in all
respects to name of holder as specified
on the face of the Warrant Certificate)
________________________________________
(Insert Social Security or Other
Identifying Number of Holder)